As early as the end of 2018, judges from Gdańsk and Kraków announced that they would not issue opinions on candidates for judicial posts, in order to halt nominations in which the new National Council of the Judiciary is taking part. Currently, judges of all eleven courts of appeal are protesting.

“This is the decision of all the appellate courts, and in some cases even a ‘double’ decision – in Gdańsk and Katowice, for example, the assembly of judges passed the resolution for a second time. This is becoming a standing practice,” says the President of the Association of Polish Judges “Iustitia”, judge Krystian Markiewicz.

According to the provisions of the Common Courts Act (Art. 58), the opinion of the assembly of judges or the judicial college is an important element of the judicial nomination process. The President of each court submits the assessments to the National Council of the Judiciary.

But the status of the Council was called into question and referred for a preliminary ruling to the EU Court of Justice. After the “reforms” by Justice Minister Zbigniew Ziobro, members of the KRS were elected by the Sejm in March 2018 with the votes of MPs from Law and Justice and Kukiz’15. Previously, the members-judges were appointed by members of the judicial community. In its prejudicial questions to the CJEU, the Supreme Court and the Supreme Administrative Court expressed doubts as to whether the new rules for the elections to the KRS were in line with EU law.

If the CJEU concurs with the doubts expressed by the Supreme Court and Supreme Administrative Court, an earthquake is in store for Poland. The KRS is involved in all judicial nomination processes. Verdicts rendered by judges whose selection the KRS took part could be quashed.

“Common sense tells us not to deepen the legal chaos. It’s standard operating procedure for a court to suspend proceedings when waiting for a preliminary ruling. It is an expression of a somewhat desperate caution in the current conditions. We look forward to a rapid resolution of these issues. We have heard the negative opinion of the Advocate General,” comments Ewa Łętowska.

CJEU ruling expected

In his opinion of 27 June, CJEU Advocate General Evgeni Tanchev wrote that the Disciplinary Chamber of the Supreme Court “does not meet the requirements of judicial independence”, and that “the method of appointing members of the National Council of the Judiciary reveals irregularities” which may threaten its independence from the executive and legislative powers.

The final verdict of the Court will be announced in a few weeks’ time. In the vast majority of cases, the judges of the CJEU take account of the opinions of the Advocates General.

“A responsible judge in these situations says, ‘let’s take our time’. Because if the CJEU says that everything’s ok, then there’s no problem: we will set a time and present our conclusions regarding the KRS proceedings. And the Council will get to work, plan three sessions in a week, and go over the applications. We’ve been waiting for two years and Minister Ziobro has yet to announce new competitions. So now we should hold on for another six months to make sure that people know their proceedings before courts are valid,” – says Krystian Markiewicz.

“What if the Court rules like the AG? What then with these judgments, what then with these negative consequences? What will the KRS and the courts’ presidents say then? Let them take responsibility their failure in their obstinacy to forget about the potential consequences for other people, because they only thought about their own interests,” stresses the judge.

Better safe than sorry

Markiewicz admits that Polish courts are in the midst of a crisis. The number of judges is declining, and cases are taking longer and longer.

“By the Minister’s not announcing new competitions, the number of judges has decreased. I can also see this in my court. Cases are lasting much, much longer today than they were four years ago. But does this mean that we have to take part in this farce which threatens to compromise us all? And it’s not so much the judiciary as the Polish State, on behalf of whom verdicts are issued – because it could turn out after the Court of Justice’s judgment that the entire legal procedure has to be unwound because of improperly appointed judges,” says the president of “Iustitia”.

The decision to refrain from issuing opinions on judicial candidates can also lengthen the waiting time for cases to be resolved.

“Nobody likes waiting for a judgement. But it’s a lot worse when we get something that looks like a judgement and we think everything’s over with. Someone bequeathed us a house, we got a divorce, we got our job back, or lost it. And suddenly it turns out that there was no judgement. It’s better to wait than to repeat proceedings from the beginning,” Markiewicz explains.

Self-governments versus presidents

After the 2016-18 purge led by Minister Zbigniew Ziobro, the majority of presidents of courts are now favourable inclined towards Law and Justice. Among them are those who adhere to the resolutions passed by the assemblies of judges. For example, the president of the Warsaw Appellate Court has yet to forward lists of candidates to the KRS.

However, other presidents of courts are ignoring decisions of their judges’ assemblies.

“In Katowice, we adopted a resolution criticising the president of the appellate court, Witold Mazur, who sent the competition applications to his brother Leszek Mazur [the President of the National Council of the Judiciary – editor’s note]. He did so despite the fact that we adopted a resolution to postpone the opinion process, and we he was obliged to refrain. This also shows the discrepancy between the presidents nominated by ‘good change’ and the judicial community’s self-government,” says Krystian Markiewicz.

Reaction by the KRS

The National Council of the Judiciary itself reacted to subsequent resolutions by judges. Since December 2018 it has issued several statements. In them, the Council claims that the refusal of the justices’ self-government authorities to give opinions on candidates does not prohibit the president from forwarding candidates to the KRS.

“The contrary conclusion could lead to paralysis of the procedure for appointing judges to the detriment of the functioning of the judiciary, the aim of which is the optimal implementation of the constitutional right to court,” as the KRS explains.

In its statement of May 2019, the Council called on the presidents of courts “to promptly send all available documents related to the nomination procedure”.

“We do not feel responsible for the chaos that has prevailed in the judiciary after the so-called ‘reforms’, but we do feel responsible for minimizing the negative impact of the Ministry of Justice’s activities. We are aware of the possible consequences. On the one hand, if we yield, judges will be elected and someone in Poland will issue verdicts. Theoretically, we should be satisfied – we will have less work. However, it may turn out that all these trials will have to be repeated. That would severely increase the legal chaos,” stresses judge Markiewicz.

[translated by Matthew La Fontaine]